Flores v Drilon (223 SCRA 568) AUTHOR: Magsino, Patricia Marie C.

TOPIC: Restrictions on the power of congress to prescribe NOTES: NOTE ISSUE NO. 1 & 4
qualifications restrictive provisions
PONENTE: Bellosillo, J.
FACTS:
Petitioners, taxpayers and employees of U.S facilities at Subic, challenge the constitutionality of Sec. 13 (d) of the
Bases Conversion and Development Act of 1992 (RA 7227)
This directs the President to appoint a professional manager as administrator of the SBMAprovided that for the 1st
year of its operations, the mayor of Olongapo City (Richard Gordon) shall be appointed as the chairman and the CEO
of the Subic Authority
Respondent Mayor Richard J. Gordon of Olongapo City was appointed as Chairman and Chief Executive Officer of
the Subic Bay Metropolitan Authority

PETITIONERS:

Petitioners maintain that this infringes the constitutional provision of Sec. 7, first par., Art. IX-B, of the
Constitution, which states "no elective official shall be eligible for appointment or designation in any capacity to
any public officer or position during his tenure"
The petitioners also contend that Congress encroached upon the discretionary power of the President to appoint

RESPONDENTS:

Respondents argue that Sec. 94 of the Local Government Code permits the appointment of a local elective official
to another post if so allowed by law or by the primary functions of his office COURT HELD THIS
CONTENTION IS FALLACIOUS
No legislative act can prevail over the fundamental law of the land COURT FINDS NO NEED TO DISCUSS
THIS ISSUE

ISSUE(S):
Does the proviso violate the constitutional proscription against appointment or designation of elective
officials to other government posts
Are the SBMA posts merely ex officio to the position of Mayor of Olongapo City and thus an excepted
circumstance
Is the Constitutional provision allowing an elective official to receive double compensation (Sec. 8, Art. IX-B)
useless if no elective official may be appointed to another post
Is there legislative encroachment on the appointing authority of the President
Can Mayor Gordon retain any and all per diems, allowances and other emoluments, which he may have received
pursuant to his appointment

HELD/RATIO:

YES. Sec. 7 of Art. IX-B of the Constitution Provides: No elective official shall be eligible for appointment or
designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or
by the primary functions of his position, no appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. The subject proviso directs the President to appoint an elective official i.e. the
Mayor of Olongapo City, to other government post (as Chairman and CEO of SBMA). This is precisely what the
Constitution prohibits. It seeks to prevent a situation where a local elective official will work for his appointment
in an executive position in government, and neglect his constituents.

NO. Congress did not contemplate making the SBMA posts as automatically attached to the Office of the
Mayor without need of appointment. The phrase shall be appointed unquestionably shows the intent to make the
 SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City.

NO. Sec. 8 does not affect the constitutionality of the subject proviso. In any case, the Vice-President for
example, an elective official who may be appointed to a cabinet post may receive the compensation attached to the
cabinet position if specifically authorized by law.

YES. Although Section 13(d) itself vests in the President the power to appoint the Chairman of SBMA, he
really has no choice but to appoint the Mayor of Olongapo City. The power of choice is the heart of the power to
appoint. Appointment involves an exercise of discretion of whom to appoint. When Congress clothes the President
with the power to appoint an officer, it cannot at the same time limit the choice of the President to only one
candidate. Such enactment effectively eliminates the discretion of the appointing power to choose and constitutes
an irregular restriction on the power of appointment. While it may be viewed that the proviso merely sets the
qualifications of the officer during the first year of operations of SBMA, i.e., he must be the Mayor of Olongapo
City, it is manifestly an abuse of congressional authority to prescribe qualifications where only one, and no other,
can qualify. Since the ineligibility of an elective official for appointment remains all throughout his tenure or
during his incumbency, he may however resign first from his elective post to cast off the constitutionally-attached
disqualification before he may be considered fit for appointment. Consequently, as long as he is an incumbent, an
elective official remains ineligible for appointment to another public office.

YES. As incumbent elective official, Gordon is ineligible for appointment to the position of Chairman and CEO
of SBMA; his appointment cannot be sustained. He remains Mayor of Olongapo City, and his acts as SBMA
official are not necessarily null and void; he may be considered a de facto officer, and in accordance with
jurisprudence, is entitled to such benefits.

CASE LAW/ DOCTRINE:

DISSENTING/CONCURRING OPINION(S):